@HarvestMoon: The stick the DOE:OCR wields isn’t so much the actual withdrawal of funding, it’s the investigation and the resulting costs. Universities know well that having too many findings of “not responsible” means Title IX complaints and investigations. This enormous pressure is part of why schools have set up these panels and stripped the accused of due process rights.
I’m not sure why we should consider it compelling that schools have adjudicated issues for a long time. First, the procedure for doing so changed when the DOE issued the Dear Colleague Letter. Even if someone approved of schools’ handling before the DCL, there’s no reason they need to do so after. Process counts. Second, even if someone is saying that schools shouldn’t handle these cases now, that position is not somehow illegitimate merely because they didn’t say so from the beginning. People are allowed to come late to issues. They can even change their minds.
The procedures schools adopt are not consistent with due process. The host of courts overturning these tribunals, many posted on this board, are evidence of that. The schools suffer from a number of issues that no training would ever address. Particularly these deal with conflicts of interest. That is not to say a school could never overcome these (it could outsource to a third party, like the AAA) but so far as I’m aware none has done so. When the investigator and hearing officers have interests in the outcome of the proceeding its results can never be trusted. That is why schools should not conduct them.
@Demosthenes49 the investigations by the OCR have been resolved without litigation (as far as I know) by Resolution Agreement. These agreements are often negotiated with the OCR by the general counsel of the university. They are pretty straight forward – they usually entail some change or addition to the school’s policy manual. So yes, it’s a PITA for the university attorneys but I don’t think significant dollars are at stake.
On the due process issue I guess we can argue that from an academic perspective forever and might actually find some common ground. But we do have to deal with the current state of the case law and the due process requirements seem to be incorporated into these hearing procedures. The problems occur when the universities do not abide by their own policies or do not have one’s in place that mirror the DCL’s recommendations. At least that is how I view the recent decisions that touch on that issue. In this case Judge Smith specifically states that “the procedures Brown has put in place for adjudicating sexual misconduct cases are not against public policy or the law.”
I am genuinely curious why you think that is the case. This is an issue that could have significant bearing in the outcome of future litigation. But the college tribunal landscape pre-DCL is hard to piece together. On the major issues my conclusion is that there was not much change, but would welcome any insight you might have.
@HarvestMoon1: Settling a case doesn’t mean the university hasn’t had to conduct an extensive and expensive internal investigation, or respond to one from OCR, it just means it didn’t get to litigation. Further, the optics and political pressure applied to the universities isn’t necessarily less even if they did avoid major financial costs.
As a matter of current law, we do need to separate the pubic and private institutions. I disagree that public institutions are upholding their duty of ensuring the accused has all process due to them. Private institutions do not have due process obligations. Instead, as you correctly note, their obligation is to be consistent with their own policies. Private institutions like Brown have a lot more leeway in designing procedures. That doesn’t mean the procedures are necessarily fair or adequate though–the law sets a low bar.
The biggest change is under the DCL is revising the standard of proof from Clear and Convincing to Preponderance of the Evidence. I agree that the DCL, at least on the surface, does not otherwise propose procedures that violate due process. Instead it mostly just demands that procedures be equal for both sides. There are clear holes in the DCL’s proposals, such as its willingness to allow schools to bar representatives while simultaneously prohibiting cross-examination by the parties, or an objective standard of fairness (this is how you get both sides with an equal chance to submit questions, but the hearing officer only asks one set).
Again though, I don’t want to concede the point that just because schools have done this for a while that it means it’s ok. We have due process for a reason, and if this corner of adjudication remained in the dark, so much the better that we’ve now unearthed it.
“Private institutions do not have due process obligations. Instead, as you correctly note, their obligation is to be consistent with their own policies.”
And the contracts they enter into, and Title IX in both directions.
@hanna This is an expulsion hearing nothing more. There is no need for a lawyer to hear it. There is no requirement that arbitrators be lawyers. There is no requirement that supreme court justices be lawyers as strange as that may seem. Jurors in some jurisdictions can ask questions of witnesses. Grand juries do decide whether some one will be charged . In some state jurisdictions judges do not need to be lawyers.
@Demosthenes49
My experience with internal investigations (for a bank) is that they can be a time drain but are not expensive. This is part of what in house counsel is paid to do. And the OCR is looking for compliance with the DCL which is a very uncomplicated document compared to bank regulations.
For adjudication of sexual assault complaints the private institutions do have due process obligations under the DCL. If you review the tribunal procedures of the various schools, both public and private, you will see that they are all extremely similar across the board. All incorporate the basic recommendations set forth in the DCL. Where you see some digression is where the DCL gives schools the option of attorneys or to undertake cross examination through questions submitted though the panel.
I do think if you review the case law relating to due process in administrative and university hearings you will find that it is very basic protection. People don’t like to hear that but that’s how the case law reads. My own impression is that the DCL mirrors that law.
On the issue of revision of the standard of proof post DCL, I have that data on my home computer and will post it tonight --although I think we already went over it in a previous thread. There were very few schools using “clear and convincing” pre-DCL bit I will link the actual data.
Here’s the information on standards of proof used by the top 200 schools pre-DCL. I count only about 20 schools using clear and convincing with the vast majority using the preponderance of evidence standard. There are a few outliers that were using neither.
There are also over 4000 colleges and universities in the U.S. covered by Title IX. When you get below the top 60 or 70 in the linked appendix almost all of them were using the preponderance standard. So while the appendix only provides information on the top 200 or so schools, I think one could make an assumption that trend of using the preponderance standard continues as you go further down the in the rankings.
It’s pretty easy to be flippant about what people “need.” What would you want for your child if she’d been attacked? I wouldn’t care much about hearing officers being lawyers if they have devoted their professional careers to justice or investigation or understanding young people, and now they do this all the time. Detectives might be good. Psychologists might be good.
But all human skills are honed through practice. If you don’t do it a lot, you will not get good at it. Zero exceptions.
Title ix trials are EXACTLY when someone needs a lawyer in the absence of trained professionals. No one thinking straight would risk their college career and tens of thousand of spent dollars and their future earnings at the hands of a facilities manager, librarian or worse another student without legal counsel.
Very true. I continue to think that many of the problems we see in the cases that do rise out of the muck could be solved by hiring competent, professional investigators (like retired cops) rather than individuals whose primary profession is something else, whether that be victim’s advocate, librarian or physics professor.
@HarvestMoon1, as far as the relevant standard of proof, I believe someone here (maybe @Consolation?) who was apprently involved in these issues pre DCL has stated previously that many of the colleges started moving to a preponderance standard in the couple year run up to the DCL, as the OCR began to flex its muscles in this arena. While I have no idea if that is true, it would be consistent with other industry responses to proposed/potential rule making. Often entities try and get out ahead of the rule making because there is a perception that it lessens the chance of an investigation once the new rules hit the books. Usually it is pretty clear which way an agency is heading as it goes through the rule making process. Whether that was the case here since the OCR did not engage in formal rule making I don’t know. But after decades working with and for the government, it wouldn’t shock me if standards started to change in the 2-3 years prior to the DCL being issued.
It’s a difficult issue. But the complaints should go to the feds who formed this policy in the way they did. And while we often assume any lawyer could steer one through this, it would need one savvy to how colleges are allowed to operate, both within the context of Title IX and as entities unto themselves. Not just looking through the lens of civil law.
@consolation, I am often wrong. Just ask many of the posters here
@lookingforward, yes exactly. I know @Hanna isn’t practicing, but as far as I know she is the only JD here who has a familiarity with this world. The rest of us are simply trying to extrapolate from different although in some ways related practices. But even after a couple decades and a bit of civil practice, there is no way I would take one of these cases without a ton of prep and hopefully a co counsel familiar with the area. That said, I think most competent civil lawyers who have some experience in administrative law can look at the hearing models used by the colleges and point out the weird stuff.
The Jack Montague case will be especially interesting. I read an article this summer that extrapolated the threshold under which a student can be found responsible for rape (or sexual assault) at Yale and that Yale’s policy is that three out of five people who are 51 percent sure that the violation happened is enough to convict. The article went on to say that works out to 30.6 percent confidence by the panel. That is a scary statistic whether the math logic is right or wrong and one that is stuck in my head.
@HarvestMoon1: Thanks for the links. As Ohiodad51 already pointed out, it’s not surprising that schools would mirror the DCL as much as possible before it comes out. It’s standard practice to try to anticipate agency action and be compliant before it’s required. But even if we grant all of the procedures carried out by schools as dictated by the DCL, nothing in the DCL clears up the problems inherent in universities carrying out their own investigations and adjudications.
Regarding the due process floor, I think the sheer number of overturned university cases speaks a lot to their compliance with constitutional requirements. And those are just the cases where the students could afford counsel.
@Demosthenes49 Most universities do not carry out their own investigations. Many of them use the single investigator model and retain professionals. Either an attorney with experience in that area or a company like this:
Now come on – you don’t really think you can get off that easy!! There is absolutely no evidence that all these schools just jumped to the PPE standard in anticipation of something coming from the DOE. I know Dartmouth and MIT have used it for decades. And Princeton and a few other schools did not comply and fought it till the end – no one seemed to want to appease the DOE hence the need for another DCL – the April 11’ was not the first as far as I know.
Anyway I have other thoughts and I will post a more adequate response when I have more time.
momofthreeboys, you write: “Yale’s policy is that three out of five people who are 51 percent sure that the violation happened is enough to convict. The article went on to say that works out to 30.6 percent confidence by the panel. That is a scary statistic whether the math logic is right or wrong and one that is stuck in my head.”
It works out to a 30.6% confidence by the panel if the two dissenters are 100% sure no violation occurred. That seems unlikely, although not impossible. It would probably be more accurate to say that the preponderance rule effectively means that a violation can be found notwithstanding that on an overall basis the panel’s certainty level is below 50%, theoretically even as low as 31%.
Here’s what I have been thinking recently:
The real issue here is who bears the consequences of uncertainty and mistake, and what it means to bear those consequences. Each of the controversial cases is basically a he-said, she-said situation (except for the ones where it’s he’s-drunk, she’s-drunk, his fault). On one side, there’s a young woman who says she can’t feel safe on campus with her attacker roaming free, and she feels it will be her responsibility if he assaults other women because she did not speak out. And the guy is saying, I didn’t do anything wrong, she was texting me like everything was fine right afterwards, she’s angry about my new girlfriend, she didn’t say I attacked her until the Title IX coordinator convinced her that she had been raped,
If you say there has to be clear and convincing evidence, you have a number of women with legitimate (but unprovable) complaints feeling unsafe, and you almost certainly suppress the number of complaints because the grapevine tells women that lots of the men accused escape punishment. If you use a lower standard, there are going to be more complaints, probably more abuse of complaints, and more innocent men being restricted, suspended, or even expelled.
Ultimately, I think the standard of proof should correspond to some extent to the seriousness of the consequences. No one should be expelled on a mere preponderance of evidence, or even on a divided vote. But it doesn’t seem unjust at all to order someone to stay away from the complainant, to undergo consent training, or even to suspend him for one or two semesters,on a mere preponderance of evidence.
